Vol. 35, Number 12—December 2003

Together, Federal and State Judges Find Solutions to Mutual Concerns

A number of years ago, Judge Gerald B. Tjoflat (11th Cir.) was involved in a seminar in the Eleventh Circuit that included state judges and related to federal habeas corpus and capital sentencing.

Several federal judges also attended the seminar, and the tension between the two groups, Tjoflat remembers, could have been cut with a knife.

“Federal courts frequently review—and may set aside—state court convictions challenged by prisoners. State judges may have felt that federal judges were looking over their shoulders,” Tjoflat explained. But between the educational benefits of the seminar and the informality of a barbecue dinner that night, Tjoflat recounted, “By day two the atmosphere had changed 180 degrees, and there was a mutual understanding of what goes on. Interaction of state and federal judges has enormous value for both.”

Judges in federal and state courts across the country have discovered the truth in Tjoflat’s experience. Some have set up formal councils with semiannual meetings. Others work more informally, with groups of state and federal judges meeting on an irregular basis or during annual bar meetings.

Chief Justice Warren Burger advocated the formation of state-federal judicial councils and, under Chief Justice William H. Rehnquist, a Judicial Conference committee was formed to “serve as a conduit for communication on matters of mutual concern between the federal Judiciary and state courts, as well as to consider jurisdictional issues.” The Judicial Conference Committee on Federal-State Jurisdiction, chaired by Judge Frederick P. Stamp, Jr. (D. W. Va.), includes four state Supreme Court justices among its members.

“I am very proud of the work that our committee has done in cooperation with the state courts in establishing and promoting programs of mutual interest,” said Stamp.” This has been accomplished, in large part, by the excellent cooperation provided by the state chief justices who have, over the years, served as members of our committee. We have also encouraged members of our committee who are attending judicial conferences or meetings to request time on their agendas to promote federal-state court education programs.” Stamp and Judge Susan Black (11th Cir.) also serve as liaisons to the Conference of Chief Justices (CCJ), attending CCJ meetings twice a year and presenting a report to the CCJ on their committee’s work.

Within the Fifth Circuit, a State-Federal Judicial Council of Louisiana has been active for two decades conferring annually on items of mutual interest to the courts. State members are appointed by the Chief Justice of Louisiana, and federal members are appointed by the Chief Judge of the Fifth Circuit. Recently, Chief Judge Carolyn Dineen King (5th Cir.) reactivated the Council by appointing new members.

In the Fourth Circuit, the State-Federal Judicial Council of Virginia has been active since June 3, 1971. Judge John D. Butzner, Jr. (4th Cir.), Circuit Executive Samuel W. Phillips, and then-Virginia Supreme Court Chief Justice Harold F. Snead were the original organizers of the 12-member council, with its equal numbers of state and federal court representatives who meet in the spring and fall of each year. According to its charter, the Council “seeks improvements in the administration of justice in the state and federal courts of the Commonwealth of Virginia . . .; shares materials and information that may have application or impact on the two judiciaries; eliminates conflicts or misunderstandings that may develop among the judges of the two judiciaries; and suggests legislation to the State Legislature and the Congress of the United States that the Council believes would improve the administration of justice.”

In the Third Circuit, Delaware has a federal-state relations committee. The Third Circuit also formed a special alliance with Pennsylvania state judges, with federal and state judges working together on the Third Circuit Task Force on Management of Death Penalty Litigation, co-chaired by Judge Edward R. Becker (3rd Cir.). Its members included the president of the Pennsylvania Conference of State Trial Judges, the professional association for 400 judges in Pennsylvania. The Task Force’s overall goal was to improve the litigation process and ensure the fair administration of the death penalty. A successor committee, established by Chief Judge Anthony J. Scirica (3rd Cir.), is working with state courts on standards for counsel in death penalty cases.

In 1993, in the First Circuit, Judge Bruce M. Selya helped establish with then–Chief Justice of Rhode Island, Joseph R. Weisberger, the Rhode Island Federal State Council. Selya has served as council chair since the council’s inception.

“It is self evident that federal and state courts are working toward the same goals and objectives in an environment where the public often doesn’t distinguish between them,” said Selya. “The Council is an opportunity for joint input and solutions to mutual problems. Also, in terms of collegiality, there are few forums where judges can talk openly together. For those reasons, I believe the Council was—and is—a good idea.”

Rhode Island Council members have looked at how to ensure a criminal defendant has the same counsel in both the state and federal systems, courthouse construction, and, at its semi-annual meeting held just before Thanksgiving, a cooperative method of handling discovery to avoid duplication of effort that was worked out by a Rhode Island Superior Court judge and a federal judge. And there are other, unexpected avenues of cooperation.

“After 9-11, thanks to our U.S. Marshals, the federal courts were ahead in terms of court security,” said Selya. “We were able to give our state court members briefings on the available security technology.”

All of the states in the Ninth Circuit—Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington—have federal-state councils. For example, Idaho’s State-Federal Judicial Council meets with the State Supreme Court and Court of Appeals judges twice a year. Idaho state and federal judges have joined together to certify Spanish interpreters, share facilities, and work together on media and Alternative Dispute Resolution committees, and on the Citizen’s Law Academy, an outreach continuing legal education program. The Council has conducted two bankruptcy law programs for state judges, and state judges also are invited to regional district conferences of the federal courts.

Most Ninth Circuit federal-state councils are made up of an equal number of state and federal judges, with some staff support from the state administrative office of the courts and the Circuit Executive’s office in the Ninth Circuit. A few councils include tribal court judges, court clerks, and lawyer representatives.

“In my view, the most significant accomplishments,” said Chief Judge Mary Schroeder (9th Cir.), “have been the planning and implementation of joint educational programs on such subjects as capital habeas corpus, jury reform, genetics and the law, and tribal court jurisdiction. Larger formal programs have served as a springboard for more frequent interim communication among judges and staff in the two court systems.” The Circuit also has twice obtained funding for and planned regional meetings of state and federal judges from throughout the circuit. “Both were very well received,” said Schroeder.

Education is an important component of most federal-state councils. Judge Carlos Lucero (10th Cir.) as a new member of the Colorado Judicial Coordinating Council, has been struck by the enthusiasm of the state court judges for the Council. The reason for their enthusiasm may come down to what the federal courts have to offer. “We’re all under tough financial constraints, but the state courts probably more so than the federal courts,” said Lucero. “When their own programs are curtailed, the state judges can benefit from the educational programs the federal system has to offer.”

In the Second Circuit, the New York Federal-State Judicial Council has sponsored over the past several years a number of educational symposia both for practitioners and judges, and for judges only. In the Seventh Circuit, the Chicago Bar Association recently sponsored a seminar for federal and state judges on judicial conduct. Justice John Paul Stevens made the introductory remarks to the 25 federal judges and 110 state judges in attendance. Although the Seventh Circuit has had joint judicial councils in each state, this was the first time there has been a joint seminar for state and federal judges in the circuit. Another seminar may be held next year, possibly on calendar management, an issue that crosses federal-state jurisdictional lines.

Knowing where those jurisdictional lines cross can help both courts, according to Circuit Executive Collins Fitzpatrick, who says that a number of bankruptcy judges in the Seventh Circuit have met with state judges to discuss the Bankruptcy Code automatic stay provisions which freeze state litigation, particularly in home foreclosure cases. “This has helped alleviate the friction when lawyers tell a state judge that, due to these provisions, the trial has to be postponed,” said Fitzpatrick.

Councils can expand their educational reach nationwide when they add their joint federal-state seminars and programs to a database on the Federal Judicial Center’s website at www.fjc.gov/fsje/home.nsf. The programs currently posted to the website cover such topics as alternative dispute resolution, bankruptcy, class actions, habeas corpus and public trust. The website notes the program date, topics discussed, general comments, links to any related materials, and a contact for more information on the program. The Judicial Conference Committee on Federal-State Jurisdiction asked the FJC to develop the website.

By creating a database of state-federal program information and making it widely accessible through the Internet, the committee hopes to generate additional interest in state-federal programs and encourage sponsorship of more programs.

Tjoflat endorses federal-state judicial councils, particularly the benefits of workshops and informal contacts, where, he feels, the most constructive work is done. He echoes Lucero, who says the primary advantage of federal and state judge interaction is the increased use of the “pick-up-the-phone” program, which encourages federal and state judges to communicate when they have a conflict. “It’s establishing a good relationship.” said Tjoflat. “It takes what I call a ‘breaking of bread’ to build understanding of two systems. When you get to know a person, you work more with each other.”